Ontario College of Teachers v. Steele, 2018 ONOCT 2

Citation: Ontario College of Teachers v Steele 2018 ONOCT 2

Date: 2018-01-03

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Darcy Robert Steele, a member of the Ontario College of Teachers.

PANEL: Ravi Vethamany, OCT, Chair Merzak Damou, OCT Jane Ishibashi

BETWEEN: ) Ava Arbuck, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix, ) Law Clerk

– and – )

DARCY ROBERT STEELE ) Darcy Robert Steele, (CERTIFICATE #437495) ) self-represented but not in attendance ) Erica Richler, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: December 5, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 5, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated September 30, 2014 (Exhibit 1) was served on Darcy Robert Steele (the “Member”), requesting his presence on October 30, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 5, 2017.

The Member was not in attendance for the hearing and did not have legal representation. However, the Committee was advised at the outset of the hearing that the Member had entered into an agreement with the College with respect to the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(g) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(i) he has been found to have committed unprofessional conduct by the hearing committee of the Professional Conduct Committee of the Alberta Teachers’ Association, based on facts that would constitute professional misconduct contrary to Ontario Regulation 437/97, section 2.

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

Darcy Robert Steele is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
On or about September 28, 2009, the Member became a member of the Alberta Teachers’ Association. Attached hereto and marked as Exhibit “B” is a copy of the Statement of Professional Standing for Darcy Robert Steele provided by the Office of the Registrar for Alberta Education.
During the 2009-2010 school year, the Member was employed as a teacher by the Northland School Division No. 61 in the province of Alberta, and taught a Grade [XXX]class at [XXX]School. On or about April 18, 2010, the Member tendered his resignation to the superintendent of the Northland School Division.
On or about May 20, 2010, the Member was charged with two counts of assault contrary to section 266 of the Criminal Code of Canada. On or about May 25, 2010, the Member pleaded guilty to both counts of assault and received a suspended sentence with probation for two years. The assaults were in relation to a domestic situation. Attached hereto and marked as Exhibit “C” are copies of the court informations and as Exhibit “D” is a copy of the Transcript of the Guilty Plea Proceedings.
Five charges of unprofessional conduct were laid against the Member pursuant to Alberta’s Teaching Profession Act, RSA 2000, c T-2 (the “Teaching Profession Act”), each relating to conduct that occurred during the 2009-2010 school year. Four of the charges related to unprofessional conduct in the classroom, and the fifth charge related to the Member’s convictions:

(a) between October 2009 and April 2010, he yelled at one or more students and used inappropriate language with one or more students, thus failing to treat them with dignity and respect and in consideration of their circumstances;

(b) between October 2009 and April 2010, he kicked furniture such as to cause injury to one or more students, thus failing to treat them with dignity and respect and in consideration of their circumstances;

(c) between October 2009 and April 2010, he threw or batted objects in the direction of one or more students, thus failing to treat them with dignity and respect and in consideration of their circumstances;

(d) between October 2009 and April 2010, he yelled at students, kicked furniture and threw objects such as to cause injury to students, thus failing to treat them with dignity and respect and in consideration of their circumstances;

(e) on or about May 25, 2011¹, he was convicted of criminal offences in that he committed an assault on Person A and Person B, contrary to section 266 of the Criminal Code, thus acting in a manner which harms or tends to harm the standing of teachers generally.

The Member’s hearing before a Hearing Committee of the Professional Conduct Committee (the “Hearing Committee”) of the Alberta Teachers’ Association took place on June 25 and 26, 2012. The Member was neither present nor represented at his hearing. At the conclusion of the evidence, the Hearing Committee found the Member guilty of all five charges.
The orders available to a hearing committee upon a finding of unprofessional conduct are found in section 42(1) of the Teaching Profession Act and include canceling or suspending the member’s membership in the association, recommending that the Minister cancel or suspend the member’s teaching certificate, and/or making any further or other order it considers appropriate.
The Hearing Committee ordered the following penalty in the Member’s case:

(a) it declared the Member ineligible for membership in the Alberta Teachers’ Association for a period of two years;

(b) it made a recommendation to the Minister of Education to suspend the Member’s teaching certificate for a period of two years;

(c) it required the Member to pay a fine of $4000 within 90 days of his receipt of the Committee’s report, and failure to comply would result in a declaration of ineligibility for membership in the Association.

Attached hereto and marked as Exhibit “E” is a copy of the Alberta Teachers’ Association’s Report of the Hearing Committee of the Professional Conduct Committee In The Matter of Charges of Unprofessional Conduct Against Darcy Robert Steele, dated June 27, 2012.

Only the Minister of Education has the power to suspend or cancel an individual’s teaching certificate in Alberta, pursuant to section 25 of Alberta’s Certification of Teachers Regulation (“Certification Regulation”). Section 26 permits the Minister to accept, reject or vary an order of a hearing committee made under the Teaching Profession Act, and section 28 states the Minister’s decision is final.
The Hearing Committee’s June 27, 2012 Report, including its recommendation to the Minister of Education to suspend the Member’s teaching certificate for two years, was referred to the then-Minister of Education. By letter dated March 26, 2013, the Member was advised by the then-Minister that based on the seriousness of the charges presented in the Committee’s decision, he had cancelled the Member’s Permanent Professional Certificate. Attached hereto and marked as Exhibit “F” is a copy of the letter dated March 26, 2013, and a copy of Alberta’s Acting Registrar’s Letter to the College dated June 12, 2013, advising the College of the Minister’s decision.
The Member continues to reside in Alberta.

GUILTY PLEA

By this document², the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(16), 1(17), 1(18) and 1(19). The Member also admits that he has been found guilty of unprofessional conduct by the Professional Conduct Committee of the Alberta Teachers’ Association based on facts that would constitute professional misconduct as defined in Ontario Regulation 437/97.
By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’s decision and a summary of its reasons, including reference to his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and without the advice of legal counsel.

In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Committee finds that the facts support a finding of professional misconduct. Specifically, in an oral decision delivered on December 5, 2017, the Committee found that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(16), 1(17), 1(18) and 1(19). The Member has also been found guilty of unprofessional conduct by the Professional Conduct Committee of the Alberta Teachers’ Association based on facts that would constitute professional misconduct as defined in section 2 of Ontario Regulation 437/97.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections (5), 1(7), 1(7.1), 1(7.2), 1(16), 1(17), 1(18) and 1(19). The Committee further accepts the Member’s admission that he was found guilty of unprofessional conduct by the Professional Conduct Committee of the Alberta Teachers’ Association based on facts that would constitute professional misconduct as defined in Ontario Regulation 437/97.

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member has been found to have committed unprofessional conduct by the hearing committee of the Professional Conduct Committee of the Alberta Teachers’ Association, based on facts that would constitute professional misconduct contrary to Ontario Regulation 437/97.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 4), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

direct that the Member receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of two years commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register; and
direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or returning to teaching or any position requiring a Certificate of Qualification and Registration (“Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management, including anger management and appropriate boundaries with students, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course; and

(c) the Member shall not teach or work in any position for which a Certificate of Qualification and Registration is required unless he has successfully completed the course outlined in paragraph (a).

The Committee sought additional submissions from College Counsel regarding the form of the reprimand. Although the College took no position regarding this issue and indicated that the Committee has full discretion, College Counsel suggested that a written reprimand would ensure that the Member received his reprimand in a timely manner.

PENALTY DECISION

In an oral decision rendered on December 5, 2017, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above. With respect to the form of the reprimand, the Committee accepted the submission of College Counsel and ordered that the reprimand be delivered in writing.

REASONS FOR PENALTY DECISION

The Committee accepted the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

College Counsel provided the Committee with the following cases to demonstrate that the jointly proposed penalty is within a reasonable range based on past cases before the Discipline Committee that involved similar misconduct: Ontario College of Teachers v. Luymes, 2016 ONOCT 34 (“Luymes”); Ontario College of Teachers v. Jordan, 2016 ONOCT 64 (“Jordan”); Ontario College of Teachers v. McClenaghan, 2017 ONOCT 70 (“McClenaghan”); Ontario College of Teachers v. Beeharry, 2015 ONOCT 3 (“Beeharry”); Ontario College of Teachers v. Page (2 November 2017) (“Page”); and Ontario College of Teachers v. Biggs, 2014 ONOCT 7 (“Biggs”).

Reprimand

The Committee finds that the Member’s unprofessional and criminal conduct warrants a reprimand by his peers. The Member pleaded guilty to two counts of assault, contrary to section 266 of the Criminal Code of Canada. This assault occurred outside of the educational setting and was in relation to a domestic situation involving the Member’s common-law spouse at the time and her [XXX]old son. Nevertheless, the Member’s criminal conduct is unacceptable and undermines the public’s trust and confidence in members of the teaching profession.

The Member also engaged in inappropriate and abusive classroom conduct over the course of approximately six months. Among other things, he yelled at one or more students and used inappropriate language; he kicked furniture causing injury to one or more students; and he threw or batted objects in the direction of one or more students. Although this conduct occurred while he was teaching in Alberta, the Member admitted and the Committee finds that these acts would also constitute professional misconduct pursuant to section 2 of Ontario Regulation 437/97.

Members of the teaching profession are expected to treat students with respect at all times and to provide them with a safe learning environment. The Member repeatedly fell short of meeting these expectations. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession. With respect to the form of the reprimand, the Committee agrees with College Counsel that delivering the reprimand in writing is appropriate in this case as it will ensure that the Member, who resides in Alberta, receives his reprimand in a timely manner.

Two-year Suspension

The Committee accepts the College’s position that a two-year suspension is reasonable given the circumstances of this case. College Counsel made extensive submissions regarding the appropriateness of ordering a two-year suspension in this case, instead of revoking the Member’s certificate of qualification and registration. According to College Counsel, similar cases before the Discipline Committee have resulted in penalties that included reprimands, suspensions and the requirement that members successfully complete prescribed professional learning courses. Revocation has typically been ordered in cases involving sexual misconduct or a pattern of abusive classroom behaviour that occurred over a prolonged period of time. College Counsel submitted that a two-year suspension is the longest suspension that the Committee can order, pursuant to subsection 30(4)2 of the Act. A two-year suspension is also consistent with the recommendation of the Alberta Teachers’ Association’s Hearing Committee (despite the fact that the Minister of Education decided not to follow the Hearing Committee’s recommendation and instead ordered the cancellation of the Member’s Alberta Permanent Professional Certificate).

The Committee finds that the two-year suspension falls within a reasonable range as established by the case law presented by College Counsel. The Discipline Committee’s prior decisions in Luymes, Jordan and McClenaghan all involved members who were criminally convicted of assault. In Jordan and McClenaghan, the members’ penalties included reprimands and coursework requirements. In Luymes, the penalty included a reprimand, coursework requirements and a three-month suspension. Luymes is also notable because Mr. Luymes’ misconduct occurred in British Columbia, where his certificate of qualification was cancelled; whereas the College’s Discipline Committee did not revoke his certificate of qualification and registration. Luymes demonstrates, among other things, that the Discipline Committee is an independent body that has the authority to make an order that it considers appropriate, regardless of orders that may have been made in other jurisdictions.

The Committee accepts College Counsel’s submission that the Member’s case is more serious than Luymes, Jordan or McClenaghan because the Member’s misconduct involved the assault of a young boy, and because he had also engaged in abusive classroom behaviour over the period of approximately six months. A more severe penalty is therefore warranted in the Member’s case.

The Discipline Committee’s decisions in Beeharry, Page and Biggs involved similar abusive classroom conduct to that of the Member. In Beeharry, Ms. Beeharry’s misconduct included threatening to tie a student to a chair, tossing a student to the carpet, kicking a student and pulling a chair out from under a student. This misconduct resulted in a reprimand a coursework requirements. In Page, Ms. Page’s misconduct involved students who had intellectual disabilities or developmental delays. Ms. Page threw a basketball at a student out of frustration, she made inappropriate physical contact with another student, and she struck a student in the shin with her leg. This misconduct led to a reprimand, a two-month suspension and coursework requirements. In Biggs, Ms. Biggs had made a number of inappropriate and demeaning comments to students and she pushed a student’s head into a water fountain causing the student’s tooth to chip. Her misconduct formed part of an abusive pattern of behaviour that took place over the course of at least three years, it was repeated at different schools, it involved several different students, and she did not accept any responsibility for her actions. Her serious and repeated misconduct led to the revocation of her certificate of qualification and registration.

The Committee accepts College Counsel’s submission that the Member’s case is more serious than Beeharry and Page (and therefore warrants a lengthier suspension) because, in addition to engaging in abusive classroom conduct, the Member was criminally charged with two counts of assault to which he pleaded guilty. However, the Member’s misconduct was less serious than the misconduct in Biggs. Unlike Ms. Biggs, the Member did not show a repeated and blatant disregard for the wellbeing of students over the course of at least three years and at a number of different schools. The Member also took responsibility for his actions by pleading guilty in court almost immediately and by cooperating with the College by entering into an agreement, thereby conserving the judicial resources that would have been required to conduct a contested hearing. Accordingly, a penalty that is slightly less severe than revocation is appropriate in the Member’s case.

The Committee further accepts the submission of College Counsel and the advice of Independent Legal Counsel that it would not bring the administration of justice into disrepute to order a sanction in this case that is different from that ordered previously in Alberta. The applicable laws and the discipline processes in Alberta differ from those in Ontario, as does the established jurisprudence. It is conceivable (although not the case here) that the Committee would not have the legal authority under its enabling legislation to make a particular order made in another province. It is therefore not reasonable for the Discipline Committee to be bound by orders that were made in a different jurisdiction.

Moreover, the threshold for rejecting a joint submission is very high. In R. v. Anthony-Cook, 2016 SCC 43 at para. 34, the Supreme Court of Canada stated:

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold.³

While revocation may well have been an appropriate penalty in the Member’s case, the Committee’s task is not to determine the most appropriate penalty; it is rather to assess whether the proposed penalty would bring the administration of justice into disrepute. If the jointly proposed penalty would not bring the administration of justice into disrepute, then the Committee must make an order in accordance with the joint submission. The parties have jointly proposed that a two-year suspension is appropriate in this case. They arrived at this agreement through negotiation in an adversarial process. The Committee does not believe that ordering a two-year suspension (which is the longest suspension that can be ordered) instead of revoking the Member’s certificate meets the high threshold for rejecting the parties’ joint submission.

The Committee denounces the Member’s criminal and abusive conduct. The two-year suspension is significant and it is proportionate to the Member’s misconduct. Although the Member is not currently teaching in Ontario, the suspension will serve as a general deterrent to other members of the profession by informing them that there are serious consequences for engaging in misconduct similar to that of the Member.

Coursework

The Committee finds that the course of instruction regarding classroom management, including anger management and appropriate boundaries with students, will assist in the rehabilitation of the Member, should he ever return to a Teaching Position. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students. It will also serve to protect the public interest because the Member will not be permitted to return to a Teaching Position in Ontario until he successfully completes the coursework, which will be designed to address the Member’s misconduct. A notation will also remain on the Member’s public register profile until he satisfies the terms, conditions or limitations relating to the coursework requirements. This will serve as a general deterrent to other members of the profession.

Publication

Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: January 3, 2018

Ravi Vethamany, OCT

Chair, Discipline Panel

______________________________ Merzak Damou, OCT

Member, Discipline Panel

Jane Ishibashi

Member, Discipline Panel

Footnotes

The charges before the Professional Conduct Committee erroneously stated the date of conviction as May 25, 2011. The hearing committee granted an application to amend the year of conviction from 2011 to 2010, to conform with the actual conviction date.
For the purposes of paragraphs 12 and 14, this “document” refers to the Agreed Statement of Facts and Guilty Plea.
See also R. v. Anthony-Cook, 2016 SCC 43 at para. 33 where the Supreme Court refers to two decisions of the Newfoundland and Labrador Court of Appeal in order to clarify the meaning of “bringing the administration of justice into disrepute”.